NM Law: The Billy the Kid Defense

—Gov. Bill Richardson was demonstrating Lew Wallace’s chair for a new furniture line when he allowed that he would consider pardoning Billy The Kid.

—A Santa Fe district judge ruled that a fatal rifle-shot from a balcony that killed a kid in a court yard during a gang fight was not murder because the shooter was defending a friend.

Lew Wallace was territorial governor, 1878 to 1881. The Kid, well we all know about him.

The governor — that’s Richardson not Wallace — put his prestige behind a reinvestigation of Billy’s escape from the jail on the second floor of the Lincoln County court house in April 1881. Two men were gunned down.

Here’s how historian Robert Utley described it: “Billy stunned his guard, Jim Bell, with a blow from his handcuffs and shot him with his own pistol. The second guard, Robert Olinger, was across the street at the Wortley Hotel for dinner. As Olinger raced back, Billy rested the deputy’s own shotgun on the windowsill and gave him both barrels.”

The window sill, a marker where Olinger fell, the stairs where Bell got shot, the court house itself, even the reconstructed Wortley, still stand in the historic town of Lincoln. Just waiting for TV or Hollywood, again. And you better believe that Bill Richardson will promote it.

But the Old West decision by Santa Fe District Judge Stephen Pfeffer is not Hollywood. It’s real. The undisputed facts were these: on Mothers Day two ganglike groups started fighting at a Santa Fe housing complex. By the time police arrived, 16-year-old Anthony Jaramillo lay dead in the courtyard, killed by a single gunshot to the chest.
The defendant, 19-year-old Phillip Herrera, admitted that he fired the fatal shot with his .22 rifle from a second-floor balcony. Judge Pfeffer dismissed the murder charge against Herrera. The judge bought the defense lawyer’s argument that the shooting was justifiable homicide.

See, the defendant said a friend of his who had jumped into the fray was in danger and was down. Judge Pfeffer in his ruling from the bench said it was likely that the shooting victim was about to go after the defendant’s friend with a rock. The district attorney said nothing about an appeal.

If the buddy-defense theory works here, it might work in a mock trail of Billy The Kid — on national TV before, say, Richardson, sitting in the Lew Wallace chair.

Billy shot the guards and the deputy because he was escaping. Duh!!

If he hadn’t escaped he would have been hanged. He was sentenced to hang for shooting Sheriff Brady in the street. This all was an ongoing fight between the Tunstall-McSween gang, of which the Kid was a high-calibre member, and the Murphy-Dolan gang that started the Lincoln County War by ambushing English rich kid John Tunstall. Brady was probably involved on the Murph-Dolar side. Okay?

I wonder if that chair Richardson sat in when he said he might pardon Billy was also where lew Wallace was sitting when he said: “Everything based on calculations elsewhere fails in New Mexico.”